Should have revised policies after Title IX ‘guidance’ was rescinded
A year ago, a California judge ordered the University of Southern California to pay a student nearly $112,000 in attorney’s fees for depriving him a “fair, thorough, reliable, neutral and impartial” Title IX investigation.
Title IX officials had called him a “motherfucker” – and the student who accused him of sexual assault, “a catch” – after they forgot to hang up on a phone call with the accused student and his advisor.
Last week USC was hit with an even steeper penalty after subjecting a different male student to a deficient Title IX investigation.
Los Angeles Superior Court Judge Mitchell Beckloff awarded $142,000 in attorney’s fees to “John Doe.” Part of the judge’s justification for fees: USC’s failure to revise its policies even after the Trump administration rescinded “guidance” documents from its predecessor on Title IX investigations
A state appeals court had reversed Doe’s expulsion 10 months ago, noting “there was no physical evidence” to back Title IX investigator Kegan Allee’s finding that Doe had anally raped “Jane Roe” as she claimed.
Though Roe still had the clothes she was wearing during the alleged assault, USC never bothered to obtain the evidence from her so that it could be independently tested by Doe’s counsel.
It also took Doe’s word that photos from her apartment showed blood on the mattress and floor, in spite of the fact that the photographs showed nothing resembling blood. (The incident happened the same night as a “paint party” where Roe and others were splattered with red paint that could have been confused for blood.)
Allee (in video below) remains assistant director of Title IX at USC, and the officials who called the other student “motherfucker” – Gretchen Means and Patrick Noonan – kept their positions in the Equity and Diversity Office as well.
‘Published authority in this nuanced evolving area of law’
Judge Beckloff awarded the fees under California’s so-called private attorney general statute, which rewards plaintiffs for “enforcing important public policies” through litigation.
He rejected USC’s claim that Doe could not “satisfy any of the elements” needed to qualify for fees under the statute. The private university didn’t even challenge the notion that Doe was the “successful party” in the lawsuit, given that the accused student won at the appeals court and the trial court on remand.
Doe’s lawsuit enforced “the right to a fair hearing” and USC’s obligation to “comply with its own policies and procedures in student discipline matters,” the judge wrote.
He noted the appeals court ruled that the university’s adjudicator “must have the ability to observe the demeanor” of witnesses when their credibility is the basis of a university’s determination, and the potential sanction is “severe.” USC didn’t even let Doe submit questions in writing, Beckloff added.
The failure of Allee, the investigator, to request physical evidence from Roe “was not a neutral action,” the judge continued. Allee had “emphasized [Doe] had requested the evidence[,] thereby making it easier for [Roe] to ignore,” which “hampered” Doe from defending himself:
The notion of fair and impartial investigation in a student discipline matter is an important defined right affecting the public interest.
The right to due process and fair treatment for accused students in Title IX hearings, secured by Doe’s litigation, will also be spread widely, Beckloff said. It applies to not only USC’s 44,000 current students, but future students as well. It also resulted in “published authority in this nuanced evolving area of law.”
Court grants $142,100 in attorney fees in @USC acc'd student lawsuit: "The litigation enforced important rights affecting the public interest as the ruling implicated due process rights of as well as fundamental fairness for students accused in Title IX hearings." pic.twitter.com/xjwaoOXmG6
— KC Johnson (@kcjohnson9) October 16, 2019
Only this lawsuit could have forced USC to change its policies
Simply because Doe’s interest in the litigation was “both significant and personal” – his educational opportunities at USC and elsewhere depended on reversal of his expulsion – does not preclude him from an award of attorney’s fees, the judge said.
Doe’s lawsuit was necessary to force USC to change the Title IX investigative policies that the appeals court faulted for unfairness, according to Beckloff.
As Doe argued, “the need for private enforcement [his lawsuit] is clear when [USC] took no action for over a year in response to the Department of Education’s Office [for] Civil Rights decision withdrawing the 2011 and 2014 guidance documents on how schools should investigate and adjudicate allegations of sexual misconduct under federal law,” the judge wrote.
The Obama administration had released those documents, which technically had no force of law, in order to financially threaten colleges into overhauling sexual misconduct procedures.
The Trump administration’s Department of Education “determined these guidance documents helped create a system lacking in fundamental fairness,” Beckloff wrote: USC’s procedure and policies “are largely only tested by private enforcement” through litigation like Doe’s.
The financial burden of bringing the suit was also disproportionate to “any pecuniary interest” Doe had. The judge found that though Doe would likely have “greater earning power” if he were allowed to complete his education, “this financial interest is speculative and largely incidental.”
Doe didn’t even seek a monetary award or damages to fund the lawsuit, the judge continued, citing his lawyer’s representation that Doe could afford less than half the attorney’s fees he had incurred.
Doe’s admission that the black mark on his USC record would be “devastating” to his academic and career prospects was proof that he “stood to benefit financially” from the lawsuit, USC argued. Beckloff disagreed, calling it “nothing more than speculative argument.”
USC tried to stiff Doe because he hasn’t yet paid his lawyers in full
The judge also rejected USC’s claim that Doe’s legal team had not demonstrated that its hourly rates for representing its client were “reasonable,” as is required by the California statute in order to obtain attorney’s fees.
Beckloff cited his own knowledge of “reasonable attorney fees in the community” to find that the rates were reasonable for the purpose of requiring USC to pay Doe’s fees. He also mocked USC’s argument that its payment to Doe should be capped at how much he’s spent on lawyers to date, less than $67,000.
“In fact, the evidence is to the contrary” that Doe will owe far more to his lawyers than he’s already paid, the judge wrote:
None of the legal authority cited by [USC] supports its position here. The court is unaware of any authority that limits an attorney’s fee award to the amount the prevailing party client can actually afford to pay his/her counsel.
But the judge agreed with USC that it shouldn’t have to pay much for the time Doe’s lawyers spent working on his internal administrative appeal at the university, before they started on his lawsuit. The accused student’s “procedural challenge” did not require much attorney time, in contrast to his “evidentiary attack” in court.
Beckloff made several other “reductions” to the fees sought by Doe’s legal team, based on “duplicative services,” “personal” services provided to Doe, “communications with those outside of the litigation” and other services. Lead attorney Mark Hathaway did not need to hold “team meetings” for the litigation, given his “significant involvement” in the litigation, the judge said.
Doe’s team had also sought to double the attorney’s fees it was requesting from USC, which would have been more than $360,000. Such an award is dependent on the prevailing party’s lawyers showing “extraordinary legal skill” or other factors that would bring the services rendered to their “fair market rate.”
The judge rejected the request, saying the representation Doe received did not “far” exceed what another team of lawyers at the same rate could have provided him and the issues “did not rise to the level of novel.” Beckloff reduced the sought fees of nearly $182,000 by nearly $40,000.
IMAGE: Kaspars Grinvalds/Shutterstock